Citation Nr: 0535128
Decision Date: 12/30/05 Archive Date: 01/10/06
DOCKET NO. 03-34 810 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for legal entitlement to VA death benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter and grand-daughter
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The service department has certified that the appellant's
spouse had no service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas, in
the service of the United States Armed Forces. He died in
August 1955. The appellant seeks benefits as his surviving
spouse.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a November 2002 decision of the
Department of Veterans Affairs (VA) Regional Office in
Manila, the Republic of the Philippines (RO), which held that
new and material evidence had not been received to reopen the
appellant's claim.
Subsequent correspondence to the appellant addressed both
whether new and material evidence had been received to reopen
the claim, as well as the merits of the underlying claim.
The Board can adjudicate the new and material issue without
prejudice to the appellant. As noted in more detail below,
VA provided the appellant proper notice of the evidence
required to substantiate the merits of the underlying claim.
Such evidence includes the evidence necessary to reopen the
claim. Further, as the claim must be denied as a matter of
law, the Board finds that additional development at this
point would be moot. The Board notes that in a case such as
this one, where the law and not the evidence is dispositive,
the claim should be denied or the appeal to the Board
terminated because of the absence of legal merit or the lack
of entitlement under the law. Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained and
the appellant has received the required notice.
2. The service department has certified that the appellant's
spouse had no service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas, in
the service of the United States Armed Forces.
3. A July 2001 RO decision denied non-service-connected
death benefits because the appellant's spouse did not have
the requisite service.
4. Evidence added to the record since the July 2001 decision
denying legal entitlement to non-service-connected death
benefits is either cumulative of previously considered
evidence, not relevant or, when viewed in conjunction with
the evidence previously of record, does not raise a
reasonable probability of substantiating the claim.
CONCLUSION OF LAW
The evidence received subsequent to the RO's July 1991
decision is not new and material, and the requirements to
reopen a claim of legal entitlement to VA death benefits have
not been met. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7104 (West
2002); 38 C.F.R. §§ 3.159, 20.1105 (2005); 38 C.F.R. §
3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159
(2005). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
In this case, the RO sent the appellant a decision in
November 2002, a statement of the case in April 2003, and
supplemental statements of the case in October and December
2004. These documents discussed specific evidence, the
particular legal requirements applicable to the claim, the
evidence considered, the pertinent laws and regulations, and
the reasons for the decisions. VA made all efforts to notify
and to assist the appellant with regard to the evidence
obtained, the evidence needed, the responsibilities of the
parties in obtaining the evidence, and the general notice of
the need for any evidence in the appellant's possession. The
Board finds that any defect with regard to the timing or
content of the notice to the appellant is harmless because of
the thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of that claim by the RO
subsequent to receipt of the required notice. See Mayfield
v. Nicholson, 19 Vet. App. 103 (2005). Thus, VA has
satisfied its duty to notify the appellant.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant evidence.
Thus, the Board finds that VA has satisfied both the notice
and duty to assist provisions of the law.
The Board observes that the VCAA recognizes certain
circumstances where VA will refrain from or discontinue
providing assistance. VA is not required to provide
assistance to a claimant if, as in this case, "no reasonable
possibility exists that such assistance would aid in
substantiating the claim." 38 U.S.C.A. § 5103A(2) (West
2002). Circumstances in which VA will refrain from or
discontinue providing assistance in obtaining evidence
include, but are not limited to, the claimant's ineligibility
for the benefit sought because of lack of qualifying service,
lack of veteran status, or other lack of legal eligibility.
38 C.F.R § 3.159(d).
No other development is warranted for this claim because the
law, and not the evidence, is dispositive; therefore, any
deficiency in notice to the appellant as to the duty to
assist, including the respective responsibilities of the
parties for securing evidence, is harmless, non-prejudicial
error. See Valiao v. Principi, 17 Vet. App. 229 (2003).
Where the facts averred by a claimant cannot conceivably
result in any disposition of the appeal other than affirmance
of the decision, the case should not be remanded for
development that could not possibly change the outcome of the
decision. The failure to carry out such required development
under those circumstances is nonprejudicial error under 38
U.S.C.A. § 7261(b) (in conducting review of BVA decision, the
Court shall take due account of the rule of prejudicial
error); cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(stating "strict adherence [to the law] does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case. Such
adherence would result in this Court's unnecessarily imposing
additional burdens on the BVA and [the Secretary] with no
benefit flowing to the veteran"). Because the law, not the
evidence, controls the outcome of this issue, further
expenditure of VA's resources is not warranted, and there is
no prejudice to the appellant in proceeding to consider the
claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
The July 2001 RO decision denied the appellant death benefits
because the United States Department of the Army certified
that her spouse had no service as a member of the Philippine
Commonwealth Army (USAFFE), including the recognized
guerrillas, in the Service of the United States Armed Forces.
The July 2001 RO decision denying death benefits because the
appellant's spouse did not have the requisite service is
final and is not subject to revision on the same factual
basis. 38 U.S.C.A. § 7105 (West 2002). In order to reopen
this claim, the appellant must present or secure new and
material evidence with respect to the claim. 38 U.S.C.A. §
5108; 38 C.F.R. § 3.156(a).
Despite the finality of a prior decision, a claim will be
reopened and the former disposition reviewed if new and
material evidence is presented or secured with respect to the
claim which has been disallowed. 38 U.S.C.A. § 5108; 38
C.F.R. § 3.156(a). The Court has held that, when "new and
material evidence" is presented or secured with respect to a
previously and finally disallowed claim, VA must reopen the
claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
Regulations adopted by VA implementing VCAA include changes
to the standard for determining new and material evidence
under 38 C.F.R. § 3.156(a), and provide for limited
assistance to claimants seeking to reopen previously denied
claims. The revised regulation applies to any claim to
reopen received on or after August 29, 2001. See 66 Fed.
Reg. 45,620 (August 29, 2001). As this application to reopen
was received after that date (it was received in 2002), the
revised regulation is applicable.
38 C.F.R. § 3.156(a) was revised to redefine new evidence as
existing evidence not previously submitted to agency decision
makers. Material evidence is redefined as existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate a claim. New and material evidence must not be
cumulative or redundant of evidence previously on file at the
time of the last denial and must raise a reasonable
possibility of substantiating the claim.
The evidence of record at the time of the July 1991 RO
decision included correspondence from the U.S. Army Reserve
Personnel Center indicating that the appellant's spouse had
no service as a member of the Philippine Commonwealth Army,
including the recognized guerrillas, in the service of the
United States Armed Forces.
Since the July 2001 decision, the appellant has submitted
numerous items, letters and contentions. None of this
evidence includes a finding from the service department with
respect to her spouse's service.
Based on a thorough review of the record, the Board finds
that the appellant has not submitted new and material
evidence to reopen the claim for legal entitlement to VA
death pension. The Board finds that the additional evidence
submitted after the July 2001 RO decision is not material
within the meaning of 38 C.F.R. § 3.156. The additional
evidence does not relate to an unestablished fact necessary
to substantiate the appellant's claim, or raise a reasonable
possibility of substantiating the claim under the controlling
law.
The controlling law provides that the surviving spouse of a
veteran is entitled to receive VA improved death pension
benefits if the veteran had qualifying service under 38
U.S.C.A. § 1521(j) (West 2002). The term veteran means a
person who served in the active military, naval, or air
service, and who was discharged or released therefrom under
conditions other than dishonorable. See 38 U.S.C.A. § 101(2)
(West 2002); see also 38 C.F.R. § 3.1(d) (2005).
The Court has held that "VA is prohibited from finding, on
any basis other than a service department document, which VA
believes to be authentic and accurate, or service department
verification, that a particular individual served in the U.S.
Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532
(1992); see also Venturella v. Gober, 10 Vet. App. 340, 341-
42 (1997) (embracing the holding in Duro). Further, "service
department findings are binding on VA for purposes of
establishing service in the U.S. Armed forces." Duro and
Venturella, both supra; see also Dacoron v. Brown, 4 Vet.
App. 115, 120 (1993).
In the present case, the service department found that the
appellant's spouse had no service as a member of the
Philippine Commonwealth Army, including the recognized
guerrillas, in the service of the United States Armed Forces.
In light of this fact, none of the additional evidence
submitted since the July 2001 RO decision is relevant to the
claim for legal entitlement to VA death benefits. Because
the U.S. service department's determination regarding the
appellant's spouse's service is binding on VA, and the
additional evidence received since the July 2001 decision
does not alter this fact, the Board must conclude that the
appellant's spouse was not a "veteran" for purposes of
entitlement to the claimed VA benefits. New and material
evidence not having been received, the application to reopen
the claim for legal entitlement to VA death benefits must be
denied as a matter of law. See Sabonis, supra.
(CONTINUED ON NEXT PAGE)
ORDER
New and material evidence to reopen the claim for legal
entitlement to VA death benefits has not been received, and
the appeal is denied.
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Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs